Exchange of Information between Competitors
Draft of new Horizontal Guidelines/Vertical-BER 2022
The exchange of information between market participants plays an important role, especially with regard to digitalization. However, the exchange of competitively sensitive information is critical from an antitrust point of view, as it can impair the secret competition necessary for a functioning market, with the consequence that there is a violation of the ban on cartels in Section 1 GWB and Article 101 (1) TFEU.
- 1. Exchange of Information in the Light of Antitrust Law
- 2. Draft of new Horizontal Guidelines
- 3. Exchange of Information in Dual Distribution
- 4. Conclusion
- Your Contacts
This article takes a closer look at the exchange of information, taking into account the draft of the new Horizontal Guidelines¹ as well as the Vertical Block Exemption Regulation 2022² and the associated Vertical Guidelines 2022³.
1. Exchange of Information in the Light of Antitrust Law
An exchange of information between (potential) competitors is in principle problematic if the information exchanged is likely to reduce uncertainty about the future or recent behaviour of a competitor on the market. This is regularly the case with competitively sensitive information such as data on current or future prices, sales volumes, capacities, customers and product characteristics relevant to consumers.
The exchange of information can take place for different purposes and in different forms. Typical examples of information exchange between competitors are M&A processes, association work, market information systems, cooperations and so-called dual distribution (manufacturer or wholesaler also sells its goods directly in competition with its dealers).
It should be noted that not only the direct mutual exchange between competitors is covered, but also the unilateral disclosure of competition-sensitive data as well as the exchange via third parties (e.g. service provider, platform, online tool, algorithm, market research institute, suppliers) or a joint body (e.g. trade association).
The extent to which an exchange of competitively sensitive data between competitors is permissible under antitrust law depends on various factors, including the degree of aggregation and the age of the data as well as the frequency of the exchange and the market structure. The legal assessment of an exchange of information between competitors therefore always requires a detailed case-by-case examination.
2. Draft of new Horizontal Guidelines
In March 2022, the European Commission ("Commission") presented the draft of the revised Horizontal Guidelines, which contains some innovations compared to the previous guidelines. In the following, selected aspects are presented in more detail.
2.1 Differentiation of Restriction “by object” and “by effect”
The draft retains the differentiation already contained in the previous Horizontal Guidelines between information whose exchange has a restriction of competition as its object and information whose exchange has restrictive effects on competition.
This distinction is important because in the case of a restriction of competition by object - in contrast to a situation that may have restrictive effects on competition - the effects of the restriction do not have to be proven.
In the draft of the new Horizontal Guidelines, the catalogue of information, the exchange of which is classified as a restriction of competition by object, has been significantly expanded. So far, only information on future price or quantity behaviour was considered to be a restriction of competition by object. According to the draft, information on
- current and future production capacities,
- the intended commercial strategy,
- regulations concerning current or future demand,
- the current situation of a company and its business strategy, and
- future product characteristics relevant to the consumer
have as their object the restriction of competition.
The section on the exchange of information also contains innovations, particularly with regard to issues related to digitalisation.
Digitalisation brings with it new challenges under antitrust law, as the exchange of data has gained in importance through digitalisation and is an essential component of digital offerings. Collusion or market foreclosure can occur here, but the achievement of efficiency gains is also conceivable.
When operating a B2B online platform or a "market place", through which third-party companies competing with the operator can also offer products to end customers, an exchange of information that is problematic under antitrust law can occur at various levels:
- between platform and operator
- between users
- Exchange between platform and users
The Commission sees possible collusion here above all in the securing of profit margins or the price level.
In the use of an algorithm, the Commission considers that (indirect) information sharing may consist of (potential) competitors relying on a common optimisation algorithm that makes business decisions based on sensitive business information from different competitors or the implementation of coordinated/coordinated optimisation functions or mechanisms in the relevant automated tools.
The Commission notes that the use of publicly available data to feed into algorithmic software is legal, but the aggregation of sensitive information in a pricing tool offered by a single IT company and to which several competitors have access may amount to horizontal collusion.
2.3 Public Data
The following is important in the context of public data: Information is only genuinely public if it is no more expensive for customers and companies that do not participate in the exchange to obtain it than it is for the companies that exchange the information. This means that even if the information exchanged between competitors is considered "public", it is not, on the other hand, genuinely public, if the costs associated with collecting the information discourage other companies and customers from collecting it.
This will be illustrated by the example of petrol station prices: When petrol station operators obtain information about their current prices, it is not genuine public information because considerable time and transport costs would have to be incurred to obtain the same information by other means. One would have to be constantly on the road to find out the prices shown on the display boards of the other petrol stations. The costs of this can be so high that the information can basically only be obtained through the exchange of information (Note: Since the introduction of the Market Transaction Parity for fuels, petrol station prices are genuine public information. However, the example can be transferred to other areas).
3. Exchange of Information in Dual Distribution
In dual distribution, i.e. when the supplier distributes its goods both directly and through dealers, the two parties meet on the distribution market as competitors. A distribution relationship regularly requires the exchange of competitively sensitive information. This raises the question of how a corresponding exchange of information is to be assessed under antitrust law.
The distribution agreement between supplier and distributor generally falls within the scope of application of the Vertical Block Exemption Regulation (despite the fact that the contracting parties are competitors). The Verticals Block Exemption Regulation 2010 as well as the associated Verticals Guidelines did not comment on how to deal with an information exchange. It was unclear what relation the information exchange had to have to the specific vertical agreement in order to be exempted. According to the prevailing opinion, information exchange should be allowed on a need-to-know basis, i.e. limited to information that is necessary for the design and maintenance of the distribution system.
The new Vertical Block Exemption Regulation 2022, which entered into force on 1 June 2022, provides in Art. 2(5) for a two-pronged test based on the direct relationship to the implementation of the vertical agreement and the necessity to improve the production or distribution of the contract goods or services (the conditions must be cumulative). According to the new Verticals Guidelines, the existence of a direct link to the implementation of the vertical agreement and the necessity to improve the production or distribution of the contract products also depends on the specific distribution model.
The Verticals Guidelines contain sample lists of information whose exchange is "more likely to be permissible" or "more likely not to be permissible".
However, the guidelines also contain a disclaimer that the examples given in the two lists are no substitute for an examination of the concrete facts. The categorisation of one and the same piece of information can also turn out differently in individual cases.
In the consultation process on the new Vertical Block Exemption Regulation 2022, many parties rightly pointed out that information exchanged in dual distribution cannot be assessed on the basis of the categorisation of the Horizontal Guidelines for purely horizontal relationships. The corresponding references to the application of the (future) Horizontal Guidelines in the draft Vertical Block Exemption Regulation 2022 and in the draft section of the Vertical Guidelines were clearly criticised. The Commission has taken note of this and has no longer included such a reference in the new regulations. This is to be welcomed.
The Commission significantly expands the category of information whose exchange is classified as a restriction of competition by object and thus tightens the assessment of the exchange of information, since the exchange of corresponding data no longer requires proof of the competitive effects (which is sometimes difficult to provide in practice) in order to establish a cartel infringement.
With the inclusion of digitalisation aspects in the draft of the new Horizontal Guidelines, the Commission addresses an important topic in connection with the exchange of information from a practical point of view. However, the explanations remain - as in other areas - quite general. It remains to be seen how these will be substantiated by the Commission's decision-making practice.
In the case of dual distribution, the new Vertical Block Exemption Regulation 2022 now clarifies that the exchange of information between supplier and buyer is exempt under certain conditions. The vertical guidelines also contain an extensive catalogue of which information is classified as permissible or impermissible for an exchange between supplier and buyer. However, the Commission expressly points out that the classification made does not replace a case-by-case assessment. In this respect, it remains that it must be examined in each individual case whether the exchange of certain data meets the requirements for a permissible exchange of information.
1 Communication from the Commission - Approval of the content of a draft for a Communication from the Commission – Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements (OJ 2022/C 164/01)
2 Commission Regulation (EU) 2022/720 of 10 May 2022 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices
3 Communication From The Commission Commission Notice - Guidelines on vertical restraints (OJ 2022/C 248/01)